TMI Blog2018 (10) TMI 298X X X X Extracts X X X X X X X X Extracts X X X X ..... n by the authority, by virtue of the subsequent amendment, was not legal. It was in these circumstances that the Court held that the penalty for concealment of particulars of income for furnishing inaccurate particulars would be upon the assessing authority for satisfaction in that regard. In the opinion of this Court, that judgment does not help the revenue’s answer on the charge of lack of jurisdiction and the law as enunciated in Brij Mohan and Varkey Chacko (supra) i.e. that the event of default defines the jurisdiction of the concerned authority, who may proceed to initiate the penalty proceedings. In the present case, since “event of default” occurred in March, 2014 i.e. well prior to the date of coming into force the amendment (i. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the assessee did not comply with the notice. Apparently, on 05.12.2014, second notice was issued by the TPO alleging default and proposing penalty under Section 271G of the Act. The TPO made his recommendations by way of an order dated 16.01.2015. By this order, significantly the adjustments recommended were in line with the adjustments proposed for the past years based upon the methodology for AY 2009-10. The draft assessment order based upon the TPO s report, was issued on 22.06.2015. 3. Till 01.10.2014, the jurisdiction and authority to impose penalty under Section 271G was with the Assessing Officer (AO) defined in Section 2(7A) to mean the Assistant Commissioner or Deputy Commissioner or Assistant Director or Deputy Director or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings - in defence of the penalty imposed is that the first notice was not proceeded with. The TPO deemed it appropriate to give a second chance and issued fresh notice to the assessee on 05.12.2014 after the amendment was brought into force w.e.f 01.10.2014. When he issued the notice, the TPO possessed the power. The consequent imposition of penalty on 21.06.2015 was warranted and within the jurisdiction. Learned counsel for the Revenue relies upon Securities and Exchange Board of India vs. Classic Credit Ltd., JT 2017 (9) SC 558 , to say that the amendment to Section 271G merely changed the forum but did not in any way confer fresh jurisdiction on a new authority. 6. In Brij Mohan (supra), the Supreme Court articulated the corr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... particulars of income or for furnishing inaccurate particulars of income can be imposed only when the assessing authority is satisfied that there has been such concealment or furnishing of inaccurate particulars. A penalty proceeding, therefore, can be initiated only after in assessment order has been made which finds such concealment or furnishing of inaccurate particulars. Who, at this point of time, has the authority to impose the penalty is what is relevant. Whoever this authority may be, he is obliged to impose such penalty as was permissible under the law in that behalf on the date on which the offence of concealment of income was committed, that is to say, on the date of the offending return. The two aspects must firmly be borne in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Section 260/262 Cr.P.C, a Magistrate had discretion to ignore the summary proceedings and continue to try the offence in a regular manner. In the opinion of this Court, that judgment does not help the revenue s answer on the charge of lack of jurisdiction and the law as enunciated in Brij Mohan and Varkey Chacko (supra) i.e. that the event of default defines the jurisdiction of the concerned authority, who may proceed to initiate the penalty proceedings. In the present case, since event of default occurred in March, 2014 i.e. well prior to the date of coming into force the amendment (i.e. 01.10.2014), the impugned order was wholly without jurisdiction. 10. For the above reasons, it is held that the writ petition has to succeed; th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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